Refugee status determination:
three challenges
Martin Jones
Asylum seekers are subject to a variety of procedures examining their individual reasons for being outside their country of origin, and thus determining their status as refugees. Even within states, procedures can vary based upon location, country of origin and
personal history. Despite recent eforts to harmonise
RSD procedures, notably in the European Union, there is still no single model for RSD and there remains a troubling variation in outcomes in similar cases. For example, the acceptance rates for Iraqi refugees in European states governed by the EU’s RSD standards
varied between 0% in Greece and 81% in Sweden.
Studies of outcomes in RSD processes have linked recognition rates to a variety of seemingly extraneous factors, including government ideology, country of asylum demographics and the number of refugees already in the country of asylum.1 Recent studies in Canada and the US have shown that the identity
of the decision maker in RSD is oten the most signiicant inluence on the outcome.2 Recognition
rates have also been linked to refugee movements, with higher recognition rates prompting future population movements. At best, RSD is an imperfect, haphazard and challenging process. Even factoring in successes upon appeals and grants of ‘complementary protection’3, in 2007 a majority of (55%) of asylum
seekers worldwide were refused protection.
The high rejection rates and consequent threat of forced removal from the country of asylum make
these issues of vital concern to asylum seekers and to the international community. Although there are many issues to debate relating to RSD, there
are three broad, inter-related issues that cut across
national jurisdictions. These are: access to counsel, the increasing transnationality of RSD and current governance of the international refugee regime.
Access to counsel
In seting out a framework for RSD, the Executive Commitee of UNHCR has recommended that “the
applicant should be given the necessary facilities, including the services of a competent interpreter” and be allowed “to contact a representative of UNHCR.” Both of these recommendations help to ensure an outcome that is based on a full understanding of the facts of the case and on international law. However, the
Executive Commitee’s conclusions about international
protection are conspicuously silent on one issue: the access of asylum seekers to legal advice.
Access to a representative of UNHCR cannot be a substitute for the provision of or access to independent legal counsel. This is especially true in
the approximately 80 jurisdictions in which UNHCR
serves as a decision maker. Statistics on RSD indicate
that self-representation rarely, if ever, serves the
interests of the individual.4 Fortunately, the provision
of independent legal advice to asylum seekers has recently spread beyond the ‘global north’ where such services are well established (though subject to budget cutbacks). The Southern Refugee Legal Aid Network (SRLAN)5 was founded in 2007 in order to facilitate representation of asylum seekers in the ‘global south’. A growing number of legal aid organisations now exist
in the South, providing representation to a signiicant
number of asylum seekers, though the overwhelming majority remain without access to counsel.
Refugee status determination (RSD), which
is vital to the protection of so many asylum
seekers worldwide, is at best an imperfect,
haphazard and challenging process. It merits
greater attention and appropriate reform.
of Canada have provided training to staf in selected UNHCR oices, and staf from the Oice Français de Protection des Réfugiés et Apatrides (French Oice
6
RSD to the highest standards, it also continues its eforts to
Richard Stainsby (STAINSBY@unhcr.or ) is Chief, Status Determination and Protection Information Section, Division of International Protection Services, UNHCR (htp://www.unhcr.org), Geneva. The views expressed in this article are those of the author and do not necessarily represent those of the UN or UNHCR.
1. The term ‘irst instance’ means the irst decision, as opposed to decisions at appeal level. It describes the irst stage of the RSD process.
2. Online at htp://www.unhcr.org/publ/PUBL/4316f0c02.htm
October 2003. 3rd edition. Online at: htp://www.unhcr. org/refworld/docid/4714a1bf2.htm
htp://www.unhcr.org/ cgi-bin/texis/vtx/refworld/rwmain?docid=46deb0555
5. htp://www.refworld.or 6. htp://www.ofpra.gouv.f
54
FMR32
In the South, refugee legal aid has typically grown out of refugee advocacy organisations (unlike in the North where refugee legal aid is more commonly an outgrowth
of well-established legal aid programmes for indigent criminal defendants). The diferent origins of legal aid in
the South present a series of unique challenges, including
the frequently expatriate nature of staf and the lack of formal legal qualiications and training of representatives. The SRLAN’s irst project was to develop standards for
professional conduct (the Nairobi Code of February
2007); it is also in the process of developing common
training materials for refugee legal aid organisations.
Transnationality of RSD
Refugee law is inherently transnational in subject
mater insofar as the focus of the inquiry undertaken
in one country is on events in and laws of another country – the country of origin.6 However, refugee law
also relects a more dynamic form of transnationalism,
whereby norms developed and elaborated in one jurisdiction are transferred to another jurisdiction so that courts in one country seek guidance from the jurisprudences of other countries.
This means that advocates must now keep up to date on developments in not just a single jurisdiction but many. This problem is not an abstraction but presents itself every day when a client from County A applies to counsel in Country B (who received legal training in
Country C) hoping for resetlement to Country D. Sadly, legal education currently provides too litle training in
refugee law let alone with respect to its transnationality.
Governance
This inal issue is one of more general concern to the
entire refugee regime. The governance of refugee law
currently resides with UNHCR under Article 35 of the Refugee Convention and, in turn, efectively with the 76 states which are members of its Executive Commitee (and
which provide almost all of the voluntary contributions which fund UNHCR’s operations). At present UNHCR
must both develop refugee law, atempt to secure
its application by states and apply it in its own RSD operations. In such a situation, the independence of its interpretations of the Refugee Convention in its RSD decisions cannot be guaranteed. This is exacerbated by the fact that UNHCR generally does not provide
writen reasons for its decisions in RSD nor does it
always disclose all of the evidence upon which it bases
its decisions; furthermore, the UNHCR policy-making process is all too oten opaque. While UNHCR is working to address these deiciencies (and alternative practices
do exist, such as that described by Rachel Levitan in this issue of FMR), the fact that such practices can persist at all is indicative of the problem of having an international agency with legal immunity making such decisions.
The international refugee regime requires reform. That in turn requires dialogue – and dialogue requires partners. Trained refugee counsel, aware of and educated
about their transnational position and subject mater,
can be one important partner. However, what is vital to the process is the inclusion of the voice of refugees themselves. They are the most important partner – and the most important party in all RSD proceedings.
Martin Jones (martindavidjones@gmail.com) is a
visiting scholar at the Melbourne Law School of the University of Melbourne and is Director of Research and Training for the Southern Refugee Legal Aid Network.
1. Mary-Anne Kate ‘The provision of protection to asylum-seekers in destination countries’, New Issues in Refugee Research Working Paper No 114. UNHCR Geneva. May 2005. htp://www.unhcr.org/research/RESEARCH/42846e7f2.pdf
2. Sean Rehaag ‘Troubling Paterns in Canadian Refugee Adjudication’, Otawa Law Review Vol 39, 2008; Andrew I Schoenholtz, Philip G Schrag & Jaya Ramji-Nogales
‘Refugee Roulete: Disparities in Asylum Adjudication’, Stanford Law Review Vol 61,
295-412, 2007, online at htp://papers.ssrn.com/sol3/papers.cfm?abstract_id=983946.
3. ‘Complementary protection’ applies to those in need of protection who do not it the
strict criteria for the grant of refugee status, including individuals whose refoulement is barred due to a risk of torture or other severe human rights violations.
4. One study found that refugees who were represented during UNHCR RSD had twice
the recognition rate as non-represented refugees. Mike Kagan ‘Frontier Justice: Legal
Aid and UNHCR Refugee Status Determination in Egypt’, Journal of Refugee Studies 19:1, March 2006.
5. See htp://www.fahamu.org/srlan/ and htp://www.rsdwatch.org/index_iles/
Page2171.htm
6. One crucial element of RSD is the analysis of the extent to which the government of the country of origin is unable or unwilling to ofer protection to the applicant; the laws
of the country of origin may provide insight into the availability of protection.
Rosettenville Refugee Reception Ofice, Johannesburg.
Loren Landau http://migration.org.za/
